06
Jan
15

Subsidy penalty for convicted vicarious liability landowner

cash pileLast month we blogged about the Scottish landowner who was the first to be convicted under the new vicarious liability legislation which came in to force on 1st January 2012.

Ninian Robert Hathorn Johnston Stewart of the Physgill & Glasserton Estates was found guilty of being vicariously liable for the actions of his gamekeeper, Peter Finley Bell, who had laid out a poisoned bait which killed a buzzard. Bell was also found to be in possession of three banned poisons (see here).

The landowner’s conviction was met with mixed feelings. Many of us were pleased to see a successful prosecution in what was a landmark case, but there was widespread disappointment in the derisory fine of just £675.

A number of blog commentators asked whether the landowner would also be hit by a Single Farm Payment penalty for cross compliance breaches. We weren’t able to answer that at the time, although we knew that the use of a banned poison to kill a protected wild bird would certainly merit a penalty.

Well, it turns out that Mr Johnston Stewart was indeed hit with a subsidy penalty. According to his defence agent (David McKie),

He [Johnston Stewart] had already been penalised substantially via a high five-figure deduction to his single farm payment“.

We don’t know what that “high five-figure deduction” was (presumably somewhere between £10,000 – £99,999), nor do we know how it was calculated, nor what percentage it was of his annual subsidy payment. Nevertheless, it’s good to hear that a penalty was imposed so well done to SGRPID (Scottish Government, Rural Payments & Inspections Directorate) for being on the ball.

Wouldn’t it be good if this sort of detail was easily available in the public domain? We’d like to know how these public subsidies are being distributed (or revoked) and it surely has a deterrent value for other landowners who might just be persuaded to take a closer look at what their gamekeepers are up to. A section on this in the Scottish Government’s annual wildlife crime report wouldn’t go amiss….

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17 Responses to “Subsidy penalty for convicted vicarious liability landowner”


  1. January 6, 2015 at 8:09 pm

    I do hope that the penalty is nearer £99,999 than the lower figure. It is time to hit them where it counts, in their pockets.

    As for looking into, what their gamekeepers are DOING? Isn’t it more likely to be, stop telling them to DO?

    The GWCT has just announced, again, that predator control is the only way to protect vulnerable bird populations. According to Prof? Nick Sotherton. Isn’t the answer – stop shooting?

  2. 4 Julie Wright
    January 6, 2015 at 8:16 pm

    I don’t know about the laws in Scotland, but if these landowners are receiving Tax Payers money, then surely the subsidy’s should be transparent. I hope the land reform comes into effect, I love visiting Scotland and want to wildlife where these shooting estates are, not just Grouse.

  3. 5 calm summer
    January 6, 2015 at 8:16 pm

    FOI SGRPID All Incidents where single farm payment has been withheld in 2014/15 in relation to the illegal killing of wild birds. How much money was withheld on each occasion.

    They wont give details of persons or places but will provide figures.

  4. 6 Dave Dick
    January 6, 2015 at 8:20 pm

    This has been used several times before in Scotland..when a keeper has been convicted. Should be standard practice. Well done to whoever was involved in this decision. Claws back a bit of respect for “the authorities”.

  5. 9 Jeff
    January 6, 2015 at 10:20 pm

    I noticed the following comment regarding this left on the Wild about Britain forum on the 3rd January:
    “Not reported by the BBC so far as I see but the landowner in question also lost a 5 figure sum from his SFP for the year in question.

    The shoot was also temporarily closed but the word on the street is that it will resurrect itself”

    http://www.wildaboutbritain.co.uk/forums/british-birds/124273-hen-harriers-langholm-moor-24.html

  6. 10 Me
    January 6, 2015 at 11:01 pm

    Has the Scottish Government ever had an “amnesty ” on banned poisons? It just annoys me that in most cases where a Raptor has been illegally killed a banned poison has been used.If the poison is banned where are the idiots getting it from and who is supplying it If it’s meant to be banned in this country then why isn’t the supplier bring convicted? Of course that’s if the idiot using it tells the authorities how they came to havie a banned poison in their possession,in their work place,on their land or on their Estate.(my guess is the “no comment” approach by those involved)
    If you had an “amnesty” whereby the banned poisons where handed over at a designated place and thereafter destroyed (if this could be done) and the person handing it in would not be liable to prosecution.Then after the amnesty period has finished,say after 6 months,banned poison is found in the possession of a person,employee of an “Estate” etc the Scottish Government passes new legislation whereby possession of a banned poison is an automatic prison sentence whether it be by the employee,Estate manager or the Estate owner.
    If only ………

    • January 7, 2015 at 12:47 am

      There has been at least one recent (i.e. in last few years) scheme that offered the safe removal and disposal of banned pesticides, no questions asked. Clearly, not everyone signed up to it.

      Just before the Cabinet re-shuffle last year, Paul Wheelhouse stated that he was due to announce “very soon” another scheme for pesticide disposal, with the presumed intention that anyone caught in possession after that would be subject to a more serious penalty than is currently available. His successor, Aileen McLeod, also mentioned this ‘soon to be announced’ scheme when she wrote to the RACCE Committee just before Xmas.

      We don’t know any details yet, although we do know that the Crown Office is keen for it not to be called an ‘amnesty’ – perhaps for technical legal reasons.

      Will another scheme work? Doubtful. Some landowners/agents/gamekeepers might sign up to it, but those intent on poisoning obviously won’t. If that’s the case, and they do subsequently get caught with it, then the Gov can expect merry hell from the public to ensure the penalty is befitting.

      The question of where the poison is coming from is an interesting one. A few convicted keepers have claimed it was given to them a long time ago, usually by someone who is now dead. Conveniently.

      The Skibo case was an interesting example. In 2010, after the discovery of three poisoned golden eagles and a sparrowhawk, there was a raid on Skibo Estate. A large stash of Carbofuran (banned since 2001) was found locked away on the estate and the only person who had access was Dean Barr, the head keeper/sporting manager. He had a 10 kg sackful of the stuff – the largest stash ever discovered, and enough to wipe out the entire UK raptor population several times over, according to calculations done by the RSPB. When questioned, Barr claimed he was given it during his previous job at Raeshaw Estate (another ‘interesting’ shooting estate) and that he hadn’t known how to dispose of it so he took it with him to his new job at Skibo, locked it away and never touched it again. The Sheriff believed him.

      https://raptorpersecutionscotland.wordpress.com/2011/05/26/skibo-estate-results-and-this-is-justice/

      If that massive stash of banned poison had been viewed in the same light as say a controlled drug, Barr might have been charged with intent to supply.

      Gamekeepers are still using it, so there’s clearly a ready supply, and they don’t need that much to cause havoc…it’s so toxic that just a couple of grains will kill a large raptor…and a few more grains will kill a human.

      • 12 Me
        January 7, 2015 at 9:15 am

        Thanks for the info,Ed,very interesting reading.Its disgusting what these people get away with over and over again.And the lies they spout to cover up for their illegal acts and they wonder why we get so outraged and call them “criminals”

  7. 13 Pete Moss
    January 6, 2015 at 11:04 pm

    Details of farm subsidies were briefly published for all farmers in 2008 and 2009. This was challenged by some farmers in Germany and the European Courts upheld the challenge. Following that, since 2010 EU governments have only been able to publish details of subsidies received by “legal persons” i.e. companies, rather than “natural persons” i.e. individuals. However, the recent CAP reforms have changed this, and from this year onwards Governments will once again be required to publish details of CAP payments to both legal and natural persons. The Physgill and Glasserton estate is not listed on the Who Owns Scotland website, so it is not possible to see if there is a limited company or trust which holds the land. There is no guarantee in any case that it would be the same company that did the farming. There are spreadsheets which show CAP payments for 2012 and 2013 that can be downloaded from this website: http://cap-payments.defra.gov.uk/Download.aspx Details of receipts by individuals are anonymised. There are not any recipients who were legal persons whose names contained either “Physgill” or “Glasserton” listed for those years.

  8. 15 dave angel
    January 7, 2015 at 9:47 am

    ‘According to his defence agent (David McKie),’

    ###

    That will be the David Mckie who spoke at this event

    http://www.scotland.gov.uk/Topics/Environment/Wildlife-Habitats/paw-scotland/Resources/Newsletters/issue8/features/2014-conference

    He won’t have come cheap, so the SFP deduction would not be the only expense incurred by the landowner.

    And the guilty plea suggests that the legislation is robust. If there was a valid challenge available it would have been tried.

  9. 16 Dave Dick
    January 7, 2015 at 2:26 pm

    Amnesties are a waste of time and resources..theyve been tried before to absolutely no discernible effect [both on an adhoc basis by individual police officers and as a govt initiative]…my worry with these is that they almost legitimise the, “Ive had the stuff for years” arguments when it should be obvious that no gamekeeper ever held any of these pesticides [with the possible exception of strychnine] for a legitimate purpose. They were all acquired either from agricultural sources [on same estate or through illegal sale] or by smuggling from Eire or Belgium. The lattwer routes p[roved through several court cases in the 80s and 90s. This of course includes alphachloralose which was never legitimately used by gamekeepers for rats [illegal due to wildlife safety] or birds [only under licence]. ….I could write a book [oh yes, I did!….find it at http://www.amazon.co.uk/Wildlife-Crime-Dave-Dick……]

    • 17 nirofo
      January 7, 2015 at 5:05 pm

      The problem is they could have had this stuff hidden away for years and probably have, if its kept cool, sealed in a container and dry the shelf life could be quite long, possibly many years. The only way anyone will ever be aware they have it is when it’s found during a search after a poisoning incident. Unfortunately and more often than not, by the time the police get their act together and do a search of the relevant premises, ( that’s if they even bother to), word will have gone out via various channels and the poison will have been removed to some other location.

      Read your excellent book Dave, can recommend it, it certainly highlights the many problems faced in the uphill struggle to put an end to the criminal wildlife persecuting activities of the shooting establishment. Much of what you are saying I can empathise with, it could have been taken from my own similar experiences with the wildlife persecutors over many years of working with Raptors.


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